Clients Should Turn The Mediator Into Their Advocate During A Mediation
May 28, 2025 by Brian Robison
Preparation is crucial to a successful mediation. Many lawyers focus their preparations on themselves and their clients. For example, lawyers usually prepare themselves for the mediation by submitting a position paper to the mediator and by arming themselves with talking points that emphasize the strengths of their case. Lawyers also usually prepare their clients by explaining the mediation process, managing expectations, and talking through possible outcomes. But all too often, lawyers overlook an important aspect of preparing for any mediation – the need to prepare the mediator.
Ever since I started serving as a mediator three years ago, preparation has been my calling card. Before every mediation, I do more than just read the mediation statements. I hold at least one call with each side separately to dig deeper into the issues that are previewed in the statements. I read the most important briefs and cases so that I understand the key legal issues. I review hot documents, trial graphics, chronologies, expert reports, and deposition excerpts so that I understand the fact issues that a jury will have to resolve. I want to see how a jury trial will really play out. I don’t want the parties to just tell me what their best evidence is; I want them to show it to me so I can evaluate it for myself.
I also want to understand, before the mediation starts, the intangible factors that may affect the prospects for settlement. Who are the decisionmakers on both sides? What are their personalities? Are the parties coming into the mediation dispassionately, or are emotions likely to cloud the parties’ judgment? Is the defendant hoping to get indemnified by a non-party that will not be participating in the mediation? Is an insurance company participating in the mediation under a reservation-of-rights letter? If the parties previously talked about settlement, what was the result?
By providing me with this information, the parties ensure that the mediation will be more efficient. We will start with back-and-forth demands and offers right away, rather than wasting the entire morning educating me on the case while the clients get frustrated by the lack of progress. But the most important reason why lawyers should prepare the mediator is this – each side should turn me into an advocate for their side.
During my prep calls, I always tell the lawyers something along the lines of: “Give me something I can use against the other side.” In other words, let me play the role of your advocate when I talk directly to the client in the other room. Help me help you get a better deal. In the classic movie Jerry McGuire, Tom Cruise plays a sports agent who, at one point, begs his stubborn client to help him in negotiating with NFL teams. During that begging sequence, Cruise’s character delivered the classic line: “Help me help you.” That line sums up my message to the lawyers and clients on both sides as I prepare for any mediation. I don’t want to be merely a number carrier, shuttling between rooms. I want to play an active role in helping the parties settle their disputes. During my opening session, I tell both sides, “At some point today, you might get the feeling that I am picking on you. That’s because I am. That’s part of my job – to help you see not just the strengths in your case but also the weaknesses.”
By preparing the mediator for the mediation, parties ensure a more efficient process, but they also give the mediator the tools to use when playing devil’s advocate with the other side. A fully prepared mediator can help the parties and their lawyers weigh the risks and benefits of going to trial versus settling. Lawyers and clients who overlook the importance of preparing the mediator miss an opportunity to have a surrogate present their best case to the other side.
